1. Litigating Innocence Cases: 2015 update
Lisa M. Kavanaugh DENISE MCWILLIAMS
CPCS Innocence Program New England innocence project
Somerville, ma boston, ma
January 16, 2015

2. Lots of new developments
Federal Grants & “Chapter 278A” Working Group
Best Practices for Evidence Handling
Evidence Inventory Process
Chapter 278A developments
Working Group model testing order
Middlesex discovery agreement
Case law update
Statewide hair microscopy review
LISA INTRO

3. DENISE SLIDE – HOW WORKING GROUP GOT STARTED, WHO IS INVOLVED

4. DENISE SLIDE: BEST PRACTICES GUIDE, PLANNED PANEL AT BC, TRAINING OF CLERKS, ETC.

5. Chapter 278A refresher Who?
Convicted of MA crime
Incarcerated, parole/ probation, liberty otherwise restrained
Even if pled guilty or confessed
So long as presently assert innocence (Affidavit)
Analysis material to identity of perpetrator
Analysis not previously performed for one of enumerated reasons in statute
LISA SLIDE

6. Much more expansive than Rule 30!
Discovery
Standard to get hearing
Standard to get testing
Costs
Appellate Review

7. Discovery Must establish “prima facie case” for relief Discretionary
Rule 30(c)(4)
G.L. ch. 278A, sec. 3(c) & sec. 7(c)
Must establish “prima facie case” for relief
Discretionary
Commonwealth or its agents
May move for discovery if can’t satisfy 3(b) or 7(b)
If good cause, court “shall not” require prima facie case
Includes third parties
SKIM THROUGH THESE – MORE USEFUL FOR THE HANDOUT
RULE 30: (1) No entitlement to discovery unless you establish by affidavits a prima facie case for relief – that is, that “justice may not have been done.” (2) Even if you make such a showing, discovery is not mandatory, statute says only that a judge “may authorize such discovery as is deemed appropriate.”
278A – sec. 3 & 7 address discovery tools under new law.
Basically, can seek discovery whenever you aren’t able to satisfy one or more of the requisite items to obtain post-conviction analysis, provided the judge finds “good cause” for your inability to identify the location or condition of the evidence.
Do still have to make the effort to locate evidence in first instance – can’t just rely on post-conviction discovery to make prosecutor find it.
But if you can’t determine whether the evidence still exists, perhaps because prosecutor/ police/ state lab not responding, argue that there is “good cause” for why you are unable to provide that information, and judge may grant discovery without requiring you to first establish a prima facie case for relief under Rule 30
Recognizes that there will be situations where you simply cannot make out a prima facie showing for relief under Rule 30 without the testing/ analysis that’s being sought – says if you’ve got a good reason for not being able to explain where the evidence is, here’s a new tool for getting that information
Discovery not limited to identifying evidence to be tested for DNA – could be that you can’t assess the reliability of evidence used to establish the identity of the perpetrator at trial (whether that was hair comparison or fingerprint analysis or something else) without additional discovery
Quite often the case that trial discovery, particularly in older cases, missing lots of stuff – bench notes, photographs – and that all you’ve got is the conclusory report, and possibly a transcript of the trial testimony on the topic
For example, if you don’t know whether evidence still exists, and you need to get information from the prosecutor, the police, the state lab, some other state agency, so long as court finds “good cause” for your inability to know that information, sec. 7 says court shall not require establishment of prima facie case for relief under Rule 30 before ordering discovery.
Also new b/c encompasses discovery orders directed at third parties who may have evidence/ information.
Only limitation is that it must be “material to the identity of the perpetrator”
This means

8. Standard for obtaining testing/ analysis
Rule 30
G.L. ch. 278A
Testing sought “would have produced results that likely would have influenced the jury’s conclusion.” Evans, 439 Mass. 184 (2003)
Would evidence “probably have been a real factor in jury’s deliberations.”
Not only tied to innocence
Sec. (4) analysis “has the potential to result in evidence that is material to the moving party’s identification as the perpetrator…”
Must be tied to claim of innocence
Rule 30 – not just limited to innocence, but need to show that evidence would probably have been a real factor in jury’s deliberations in order to even get the testing.
278A – is limited to innocence, but it’s a lesser burden (“potential” to result in evidence that’s “material” to ID as perpetrator).
Might be situations in which it is easier to get funds/ testing ordered under Rule 30:
Where issue is whether a crime occurred at all (e.g. was it an arson?)
Where conviction was based on forensic evidence that has since been called into question/ found to be unreliable, but that does not directly bear on the identity of the perpetrator.
Where the only possible explanation for the lack of prior testing = IAC & trial (or prior post-conviction) counsel is asserting a strategic reason for not seeking testing at time of trial
That said, statute clearly not just intended to provide access to testing/ analysis that is determinative of innocence
Need only be “material” to identity of perpetrator
Certainly any type of matching evidence – ballistics, fingerprints, hair examination, voice identification – could conceivably fall under statute
Almost always going to be worth pursuing under both, b/c of the different standards.

9. Hearing (c)(3) not required if “no substantial issue”
Rule 30
G.L. ch. 278A, sec. 6(a)
(c)(3) not required if “no substantial issue”
(c)(6) presence of moving party not required at hearing
“Shall” order hearing if sec. 3 satisfied
Moving party “shall be present” unless movant waives presence
This is proving to be a double-edged sword in certain circumstances, particularly where failure to test is based on a claim of IAC.

10. Costs of testing for indigent defendants
Rule 30(c)(5)
G.L. ch. 278A
Commonwealth has right to be heard
Entirely discretionary, even if make out prima facie case for relief
Sec. 2, costs “shall be paid” if D indigent
Sec. 3, marginally indigent – court can set equitable fee
Should point out here that new law does talk about where testing is done:
8(b) says prosecutor & defense atty shall agree on lab to do testing
8(c) says if can’t agree, each must provide list of up to 3 labs, and court selects from list
8(d) says testing lab has to give both sides equal access to personnel, opinions, conclusions, reports, documents – this is very different than what MA regs say about who has access to testing, and may lead to confusion/ litigation, particularly in realm of CODIS hits or post-conviction efforts to have lab release particular profiles from CODIS for comparison testing.

11. Appellate Review Abuse of discretion Written findings not required
Rule 30
G.L. ch. 278A
Abuse of discretion
Written findings not required
No right to immediate appeal of denial of post-conviction funds, Celester v. C., 440 Mass (2004)
Sec. 3(e) – if no hearing, denied w/o prejudice, can refile
Sec. 7(a) - must make findings of fact & rulings of law after hrg
Sec. 18 – denial is “final and appealable order”
2 important results of this provision:
Don’t have to wait until the new trial motion has been decided in order to appeal denial of motion for access to evidence/ funds to test/ discovery;
Also seems to provide a way around Gatekeeper requirement for 1st degree murder cases.
SJC takes position that post-conviction mtns for funds/ discovery sought in connection with Rule 30 motion filed after direct appeal must go through gatekeeper
strong likelihood that you never even get a decision on the merits of whether should have been granted funds/ discovery, b/c could get handwritten denial by trial court, and summary denial by single justice.
B/c section 18 of 278A creates new mechanism for seeking post-conviction testing/analysis independent of a new trial motion, and also makes denial of such motion a “final and appealable order,” reasonable argument that you don’t have to satisfy gatekeeper requirement before obtaining appellate review of the denial of such a motion by trial judge.

12. How Chapter 278A works
Stage 1: Are pleadings adequate to get a hearing?
Stage 2: After the hearing, do you get testing?

13. Stage 1 cases C v. Wade, 467 Mass. 496 (2014)
Adequacy of affidavit
Meaning of “effective assistance” in context of showing why testing not previously performed
C v. Donald, 468 Mass. 37 (2014)
What if there was DNA testing, and now there’s a new test?
Can trial court consider strength of other evidence? No!

14. Issues to watch out for
Burden re. chain of custody/ contamination? Clark
Trial strategy (not to seek what was available) vs. newly available tests? Wade
Degree of waiver of attorney-client privilege? Wade
Jurisdiction in M1 cases?
Pre-direct appeal (Moffatt)
Post-direct appeal: need to satisfy gatekeeper? (Not yet raised)

15. Grant-related developments
Increased access to information for screening
From DA
From lab
Agreements to testing
Middlesex – case by case, “pain in the neck” rule
Suffolk – if grant pays, agree
Other counties – all bets are off, especially Plymouth

16. Grant-related developments
Funding
For expert consultation
For testing, where Commonwealth might not otherwise agree
Consultation
When did particular tests come on line? When issue is whether particular form of testing available
Why is new test a substantial improvement over previous testing? When issue is that some testing was done, or was available
Model affidavits

17. Hair microscopy review
2014 grant: MSP review
1980 – 2000
hair and serology
2009: NAS report says problematic
2012: DNA exonerations of 3 men whose convictions tainted by hair microscropy
In July 2013, NACDL and the IP signed the groundbreaking and historic agreement with the FBI and DOJ to review thousands of criminal cases in which the FBI conducted microscopic hair analysis of crime scene evidence. Two major developments created the impetus for this review. First, in 2009, the National Academy of Sciences (NAS) issued its report on forensic science and specifically identified microscopic hair comparison evidence as problematic.2 The report observed that “[n]o scientifically accepted statistics exist about the frequency with which particular characteristics of hair are distributed in the population. There appear to be no uniform standards on the number of features on which hairs must agree before an examiner may declare a ‘match.’”3 Further, the NAS committee found “no scientific support for the use of hair comparisons for individualization in the absence of nuclear DNA. Microscopy and mtDNA analysis can be used in tandem and may add to one another’s value for classifying a common source, but no studies have been performed specifically to quantify the reliability of their joint use.”4 
The second and more direct triggering event was the exoneration of three men between 2009 and 2012 who had served lengthy prison sentences, and whose convictions were tainted by microscopic hair comparison evidence that exceeded the limits of science. DNA testing contradicted the conclusions of three different FBI hair examiners who had provided the flawed testimony.5  

18. Questions? CPCS Innocence Program: New England Innocence Project
Lisa Kavanaugh,
Ira Gant,
Emma Zack,
New England Innocence Project
Denise McWilliams,

19. The CPCS Innocence Program is supported in part by Grant No
The CPCS Innocence Program is supported in part by Grant No FA-BX-0037 awarded by the Bureau of Justice Assistance and Grant No DY-BX-K006 awarded by the National Institute of Justice. The National Institute of Justice and the Bureau of Justice Assistance are components of the Office of Justice Program, which also includes the Bureau of Justice Statistics, the Office of Juvenile Justice and Delinquency Prevention, the SMART Office, and the Office for Victims of Crime. Points of view or opinions in this document are those of the authors and do not represent the official position or policies of the United States Department of Justice.